Yarrick v. Village of Kent City

Sawyer, J.

Plaintiffs appeal from an order of the circuit court granting summary disposition in favor of defendant on the basis of governmental immunity. MCR 2.116(C)(7). We reverse.

Plaintiff Nancy Yarrick parked her car at a roadside park owned and operated by defendant. Among the facilities at the park were public rest rooms housed in a building in the back of the small park. There were no sidewalks, improved areas, or signs marking ingress and egress from the driveway to the rest rooms. Accordingly, plaintiff walked across the grass from the parking area towards the rest rooms. While doing so, she stepped into a hole approximately twelve inches wide and ten to eleven inches deep. As a result of the accident, plaintiff allegedly sustained a serious back injury. According to plaintiff, she could not *412see the hole because it was concealed by the long grass.

Thereafter, plaintiffs filed a complaint alleging negligence and an intentional nuisance. Following a grant of summary disposition on the basis that plaintiffs had failed to plead in avoidance of immunity, plaintiffs filed a second amended complaint which included allegations of the public building exception. Defendant then moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10) and the recreational use statute, MCL 300.201; MSA 13.1485. The trial court granted the motion pursuant to MCR 2.116(C)(7), concluding that the claim was barred under the doctrine of governmental immunity, citing Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). Furthermore, the court specifically indicated that the building exception did not apply.

Plaintiffs first argue that the trial court erred in concluding that the public building exception to governmental immunity did not apply to the instant case. We disagree.

The case at bar appears to be the first to raise the issue whether prior decisions of the Supreme Court which extended coverage of the building exception to areas immediately adjacent to a public building remain viable in light of the Supreme Court’s decision in Reardon v Dep’t of Mental Health, 430 Mich 398; 424 NW2d 248 (1988). We believe that cases decided prior to Reardon, most notably Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978), and Tilford v Wayne Co General Hosp, 403 Mich 293; 269 NW2d 153 (1978), would support the proposition that the public building exception to governmental immunity would apply in the case at bar. In Pichette, the Court applied the building exception where the plaintiff was injured on a permanently attached *413playground slide immediately adjacent to a public school building. In Tilford, the Court applied the building exception where the plaintiff was injured when slipping on ice on a sidewalk immediately adjacent to a government-owned hospital. Under those decisions, we do not believe it would be improper to apply the building exception where an injury occurred while walking on a grassy area between a parking area and a public building, particularly where there were no sidewalks or other marked areas for ingress and egress to the building.

However, we believe that a more restrictive application of the building exception is called for in light of the decision in Reardon, supra. In Reardon, the Court analyzed the decisions in Pichette and Tilford, as well as other cases, noting that they utilized a broad application of the building exception to effectuate a legislative purpose of maintaining safe public places. The Court harmonized those prior decisions with its decision in Reardon by noting that those cases were decided prior to the decision in Ross, supra. The Reardon Court, supra at 413-414, distinguished those earlier cases as follows:

The rather broad statement of the legislative purpose contained in the above cases could be explained by the fact that they were all decided prior to Ross, which expansively defined "governmental functions.” Indeed, in Pichette, supra at 280, Justice Fitzgerald expressly adopted a narrow construction of "governmental function.”

The Court then went on to consider its decision in Jolly v City of St Clair, 428 Mich 860; 400 NW2d 597 (1987), wherein it held that the building exception did not apply to an injury on a playground slide that was not adjacent to or part of a public *414building. The Reardon Court then summarized its decision in Jolly and its decision in Reardon as follows:

Thus, Jolly clarifies that the duty to maintain safe public places relates to, but does not extend beyond, the condition of a public building itself or the immediately adjacent premises. By today’s holding, we wish to clarify that the duty imposed by the public building exception relates to dangers actually presented by the building itself. To hold otherwise would expand the exception beyond the scope intended by the Legislature when it enacted the immunity act. The Legislature intended to impose a duty to maintain safe public buildings, not necessarily safety in public buildings. [Reardon, supra at 415. Emphasis in original.]

Although the Reardon Court’s statement to the eifect that Jolly clarified that the duty to maintain safe public places related to buildings and the immediately adjacent premises could be read to indicate that the building exception continues to apply to the immediately adjacent premises, we believe that Reardon represents an abandonment of that doctrine. Specifically, the statement that the Court in deciding Reardon clarified "that the duty imposed by the public building exception relates to dangers actually presented by the building itself’ represents a conclusion that the building exception applies only to the building itself and not to the adjacent areas. Such an interpretation of Reardon is consistent with the Court’s distinguishing Reardon from Pichette and Tilford by the fact that they were decided prior to Ross.

Accordingly, we hold that the public building exception does not apply to the case at bar because a building itself was not involved in plaintiffs injuries.

*415We next turn to the question whether plaintiffs successfully pled in avoidance of immunity by alleging an intentional nuisance. We believe that they did. We begin by noting that it is not at all clear why the trial court held that plaintiffs’ claims under intentional nuisance were barred by governmental immunity. The trial court issued no opinion beyond stating that summary disposition would be granted pursuant to Ross, supra, and that the building exception did not apply to the instant case. The trial court offered no comment concerning the intentional nuisance exception, although clearly the court had to reject the application of that exception to the instant case in order to grant summary disposition.

The first question to be answered is, of course, whether the intentional nuisance exception remains viable in light of the Supreme Court’s decision in Hadfield v Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988). This Court has taken conflicting positions on this issue. In Scott v Dep’t of Natural Resources, 169 Mich App 205; 425 NW2d 518 (1988), this Court held that the intentional nuisance exception to governmental immunity no longer exists. However, subsequent panels of this Court have held that the intentional nuisance exception survived the Supreme Court’s decision in Hadfield. Li v Wong (On Remand), 170 Mich App 256; 428 NW2d 36 (1988); see also Garcia v City of Jackson (On Remand), 174 Mich App 373; 435 NW2d 796 (1989). Both Li and Garcia were subsequently followed by this Court in McCracken v Redford Twp, 176 Mich App 365; 439 NW2d 374 (1989), while Scott was recently followed in Giddings v Detroit, 178 Mich App 749; 444 NW2d 242 (1989). We believe that Li and its progeny correctly conclude that Hadfield did not overrule prior precedent and abolish the inten*416tional nuisance exception to governmental immunity. While it may be that the Supreme Court will eventually do so, until that time the exception remains applicable.

Moreover, having reviewed plaintiffs’ pleadings, we conclude that plaintiffs did plead an intentional nuisance, though we offer no opinion as to the prospects of plaintiffs’ prevailing at trial. Having concluded that the intentional nuisance exception to governmental immunity exists in Michigan and that plaintiffs pled an intentional nuisance, we conclude that the trial court improperly granted summary disposition under MCR 2.116(C)(7) on plaintiffs’ intentional nuisance claims.

Affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs, neither party having prevailed in full.